At the 2013 Robson Hall speakers series, former Supreme Court Justice Michel Bastarache spoke about the role the judiciary in the legal development of language rights in Canada. In his presentation, Justice Bastarache explained the history of language rights in the Canadian legal system, its place in the context of Canadian multiculturalism and ethnic nationalism, and its role in Canadian federalism and the “asymmetrical organization” of the Constitutional divisions of power.

For Justice Bastarache, to understand the unique asymmetry of language rights in Canada, we need only to look at s. 93 of the Constitution Act of 1867 which was originally meant to protect religious minorities at a time when religious education comprised rights to language of education, and the provision of s. 23 in the Canadian Charter of Rights and Freedoms of 1982 with its different application in regard to the province of Quebec.

Constitution Act, 186793. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;

(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby ex- tended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec;

(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education;

(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Constitution Act, 198223. (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Taken historically, language rights have been important instruments for linguistic minorities for their political significance in nation building (e.g., Quebec) and for the cultural continuity and survival of official language communities (e.g., New Brunswick). The importance is not only in the way they are entrenched, as individual rights, but also how they have addressed and adopted a “cultural and community approach to statutory interpretation”.

In the Canadian context, outside of Quebec, their interpretation was indeed not been based on “non-discrimination” but “the dignity of the person and equality of speakers”, with the aim of “full participation of the members [of linguistic minority communities] without having to give up their linguistic and cultural identity”. As such, language rights have been understood as fundamental rights, fundamental that is to Canadian democracy and the historical architecture of federation and the Canadian Constitution; fundamental rights with positive duties to prevent cultural assimilation.

Their first protections in Canadian history were limited. In fact, their original form was inherited into the Constitution Act of 1867 as the product of an understanding adopted in the union of 1862 carried forward with little discussion in the negotiations leading to Confederation in 1867. This 1862 status-quo provided Quebec with its own jurisdiction over areas necessary for the protection of the French language and culture — a status-quo that not only emerged in 1862 but was also carried through Confederation in 1867 and afterward.

The constitutional problems over language rights however have their roots not only very early on in Confederation but in particular with the decisions handed down from the Judicial Committee of the Privy Council, in particular, the Ottawa Roman Catholic Separate School Trustees v. Mackell [1916] — case wherein the JCPC handed a decision not in keeping with the intention of parliament nor with the historical language rights. The Mackell case produced not only cultural insecurities by providing the basis for the abolishment of French in Manitoba, and the abolishment of French schools in Ontario and the three maritime provinces, but also later the elimination of French in the North West Territories, Alberta, and Saskatchewan. Constitutional disorders that were only re-balanced with a constitutional crisis and a reference to the Supreme Court of Canada in the late-1970s to early-1980s.

Justice Bastarache notes that even after the Canadian Charter of Rights and Freedoms 1982, language rights protections were “difficult” to achieve in Canadian jurisprudence. A series of 1986 Supreme Court’s decisions that recognized a formal notion of equality (e.g., treating everyone equally in process) over a substantive notion of equality (treating everyone unequally in order for them to be equal) made the enforcement of language rights much more difficult as it tended to loosen the legislative freedoms in determining the application of language rights.

While the courts and the legislatures recognized language as a political expression that united a community, the essence of a community’s “vitality”, Justice Bastarache argued that the existence of two real official language communities in Confederation was always difficult to accept. It was not until 2002 that the Parliament of Canada recognized the distinct society of Quebec and not until shortly afterward that the Acadian community in New Brunswick received its recognition as a distinct society in the Charlesbois case. Recognition of language was indeed always a difficult problem at the heart of constitutional crises. It is the reason why in 1988 that the Government of Canada had to adopt a revised language act to uniquely promote, in its s. 41 of the Act, positive duties for protecting language communities — a duty that became justiciable by the courts after the Desrocher [2009] Case. Even though group rights recognition were sought in the Charlottetown Accord and eventually consolidated in the s.16.1 amendment to the Canadian Charter of Rights and Freedoms, language rights became once again called into question by the New Brunswick Provincial Government later in 2011. They are still a difficult political question to this day.

It was not until after the Mahé v. Alberta [1990] case and the Arsenault-Cameron v. Prince Edward Island [2000], R. v. Beaulac [1999], Doucet-Boudreau v. Nova Scotia [2003], and DesRochers v. Canada [2009] cases, that language rights were appropriately dealt with by the courts. In these cases, the courts provided clear rules of interpretations which gave preference to a substantive notion of equality, one that recognized a positive duty to institutionalize equality in the quality of public services regarding language, and restrained ministerial discretionary powers. Justice Bastarache notes that the courts recognized the positive protection of official language communities as a duty to protect the conditions for the existence and exercise of language rights for individuals.

The Beaulac [2009] case asserted that legislation could not to simply accommodate a person of an official minority language one at a time but was required to give access and serve the minority’s unique interests as a community. The organization of services must acknowledge that there are two distinct language communities, each entitled to equal access to equal quality of services.

The Arsenault-Cameron [2000] case asserted that discretionary ministerial powers to decide the means to implement language rights in education and the construction of schools were constrained by the impact of the decision would have on the survival of official language minority communities. Here, Justice Bastarache noted that legislation cannot leave such minorities communities “vulnerable to linguistic and cultural assimilation” as it has intended in s. 23 of the Canadian Charter of Rights and Freedoms.

The Lalonde v. Ontario [2002] case asserted the duty to protect the official language minority community in the context of weak legislative frameworks. The case would touch on the “unwritten constitutional principles […] set out by the Supreme Court of Canada on the Reference on the Secession of Quebec”. The case advanced the duty to promote institutional structure vital to the survival of the minority culture. Justice Bastarache argued that after Lalonde, legislative frameworks can no longer weaken or undermine institutions when legislative frameworks put the very existence of minorities at risk. Importantly, evidence at trial determined that bilingual services did not produce the same equality and access to services, and therefore the courts concluded that institutions vital to the survival of the minority cannot be replaced in favor of more cost effective bilingual ones.

The trilogy of the 1986 cases reinforcing government freedom in matters of language, contends Justice Bastarache, became seriously shaken and finally ended with the Doucet-Boudreau [2003] case. The DesRochers [2009] case however would confirm the principle of interpretation set out in Beaulac [1999] and provide an approach for recognition for group rights. The Supreme Court there came to recognize that Part 4 of the Official Languages Act not only provided individuals with the right to be served in the language of his or her choice but also the right of the minority itself to services that meet its needs. Looking at whether services were equal was “determined by a norm to serve rather than accommodate” the official language community — a notion of substantive equality test rather than formal equality was secured.

In Canada, Justice Bastarache argues, we have chosen to strengthen official language communities when it has been feasible to do so. The courts have come to accept that governments must do more than protect individual rights. The Official Languages Act was such an instance, one that indeed attempted prevent two nationalisms from dividing Canada by recognizing and ensuring the full participation of recognized official minority language communities in the political process in order to achieve the highest level of autonomy for each official language community. While the legislative aim following WWI was to quell secessionist movements, today our challenge is to “provide the conditions propitious for the harmonious development of different language groups” and encourage their full political participation. It must reflect in Justice Bastarache’s words, our ideals, fundamental values and the “requirements for a heterogeneous society” important for Canadian polity.

“In setting goals for language laws, it is always a good thing to ask oneself what factors will be used to measure success. Will success be defined in terms of absence of social conflict, absence of discrimination or real equality between persons belonging to different language communities, the status and value of which shall be recognized by all. Briefly stated, one must recognize that there are latent feelings of inferiority and insecurity that continue to result from language relations. If language legislation does not contribute to eliminate these, its only result will be to entrenched each language group in its current attitudes concerning the requirements of a pluralistic society. Language legislation can integrate but it can also isolate. Consequently, time should be taken to address the historical development of language relations in Canada. The social structure that characterize relations language communities, the social divisions that characterize the population as well as the population’s attitudes to and expectations of the political process. All these things need to be taken into consideration when providing language guarantees, and deciding on institutional arrangements for regulating relations between governments and citizens from both language communities. Language communities realize that it is in their common history and the establishment of cultural boarders that foster the development of the connections between them and the awareness of each own identity. To change the historical connections between as well as the attitudes and self-awareness of different groups, a certain sense of history and continuity is required. Long term objectives are necessary.”

While the Official Languages Act seems to aim for language security, the challenge we continue to face however is in granting full political participation without requiring the cultural and linguistic identity of the official language minority. We cannot achieve this goal without accepting the entailing positive duties at the institutional level. As Justice Bastarache explained, the courts in Canada have played an active role in developing the philosophical basis for the protection of language rights in part found in the expression of substantive equality expressed in the spirit of the Canadian Charter of Rights and Freedoms. Justice Bastarache’s presentation concludes by reminding us that since the colonial days the issue of language rights has been an issue and it will most likely continue to be an area we need to pursue a balance, one that perhaps the courts will be willing to continue to provide.